Appellate judges consider 'Big Mountain Jesus' case
PORTLAND — The home for a 6-foot-statue known as "Big Mountain Jesus" rests with a three-judge appeals panel after a lawyer representing a group of atheists asked for it to be removed from U.S. Forest Service property in Montana.
A federal district judge in 2013 said the Flathead National Forest could reissue a 10-year permit for the statue that has stood along a ski run at the Whitefish Mountain Resort since 1954. The judge, Obama appointee Dana Christensen, said no reasonable observer would conclude the Forest Service was endorsing Christianity by permitting a private party to place it on land it leases from the government.
In hopes of getting the decision reversed, attorney Rich Bolton told the 9th U.S. Circuit Court of Appeals panel Tuesday that the statue violates the constitutional prohibition on Congress making any law regarding an establishment of religion.
He said the private ownership of the statue does not trump the constitution's Establishment Clause: "The question is whether there's a perception of religious endorsement."
Bolton maintained that there is, and he said the Forest Service only granted the permit to quell public outcry after word spread in 2011 that the statue might be removed.
Bolton came under sharp questioning from one of the judges, N. Randy Smith, who seemed skeptical of whether the Wisconsin-based Freedom From Religion Foundation has standing in the case. He asked Bolton which particular member of the group has been harmed by the Forest Service's decision.
Bolton answered that a Montana-based foundation member, Pamela Morris, would like to ski at Big Mountain but has avoided it for decades since encountering the Jesus statue as a teenager.
Smith countered that the statue is only visible from a small portion of the resort and it's possible to ski all day without seeing it.
"In other words, there's no reason to even avoid it," the judge said. "She has to go specifically looking for it."
"That's not true, your honor," Bolton said.
"Well, that's what the evidence says," Smith replied.
The Knights of Columbus put up the statue to memorialize soldiers who died while fighting during World War II. The returning veterans who built it were inspired by the mountain shrines and statues they saw during their service in Italy.
U.S. Justice Department attorney Joan Pepin said the Forest Service acted with neutrality and approved the permit because the statue has local historical significance. She told the judges that the statue is primarily a meeting place, a photo backdrop and a "quirky local landmark," a reminder of how the city of Whitefish used to be.
"It's usually wearing a ski helmet," she said of the statue. "There's nothing about its context that suggests devotion is encouraged."
The judges gave no indication of when they might rule.